LEGAL AND CONSTITUTIONAL LEGISLATION COMMITTEE 29/05/2000 Office of Film and Literature Classification Outcome 1—Australians make informed decisions about films, publications and computer games which they, or those in their care, may view, read or play

CHAIR
—Mr Clark, on behalf of the committee, I welcome you to this estimates committee hearing for your first appearance before us as Director of the Office of Film and Literature Classification. We on this committee have a long and happy relationship with the Office of Film and Literature Classification and I am sure it will only be extended by your presence.

Mr Clark
—Thank you, Madam Chair.

CHAIR
—Senator Bolkus has some questions.

Senator BOLKUS
—I have maybe four or five minutes of questions and then other senators might be interested to pursue this, particularly Senator Harradine who has been patient all day. Would you like to go first?

Mr Webb
—I believe the previous assessment panel was conducted in October in Perth. I can check that. There may have been one in Adelaide in between. I think we talked about this at the last estimates in February.

Senator BOLKUS
—Have you made available the report of the Perth assessment panel?

Mr Webb
—Not yet. As I think I indicated in the February hearings, the previous three assessment panels are to be considered by censorship ministers at their next meeting in July. The censorship ministers agreed previously that they would not release reports on individual panels, preferring to release information once it has been compiled from three consecutive panels at once. The previous report that was publicly released was released in January 1999 for three panels conducted prior to that date.

Senator BOLKUS
—Can you tell us what the target turnaround times are for each type of material that you classify?

Mr Clark
—We are not meeting those targets at present. There is a backlog of material which we are currently addressing as a matter of urgency.

Senator BOLKUS
—What are your current turnaround times per type of material?

Mr Webb
—There are various turnaround times. We try to meet the requirements of businesses. For example, for weekly publishers publishing in Australia, we turnaround there within a matter of days. For mainstream releases for computer games and for cinema films, and for some video material if it is urgent, we also turnaround that in a matter of days. With imported publications and some video material—to cut to the chase, that is where we have a backlog—turnaround times there vary. For imported publications and some video material it can be up to six weeks at the moment.

Senator BOLKUS
—Can you provide for us on notice a table of the material type and the turnaround time it is taking you. How often do you tabulate this? Is it monthly, or quarterly?

Mr Webb
—That would be rather difficult to do because we offer a number of services to try and meet business requirements. These are not statutory turnaround times. The statutory turnaround time that has been mooted in a bill currently in the parliament is 20 working days. Clearly, that is not going to meet business requirements in some areas.

Senator BOLKUS
—What if I asked you to come back to us with quarterly turnaround times over the last three years, including this financial year?

Mr Webb
—That would be very difficult to answer. We could certainly give you detailed information but to make sense of it, it would be very difficult in terms of trying to answer your question. In summary, in the broad, I can tell you there have been three periods in the last three years where we have had significant delays for different reasons. The first was a boycott by the X industry, which was released once there was some police enforcement activity and we were flooded with material. So that caused a backlog. The second was an accumulation of applications while we were awaiting government appointments, and that was repeated again last year. We are still working through that backlog.

Senator BOLKUS
—You were able to tell me just a few minutes ago what the turnaround time is, virtually at the moment. I presume you must have some statistics that reflect the turnaround times.

Mr Webb
—Certainly, we could give you detailed turnaround times for every application that we have received within the last three years. What I am saying is that I do not know if it will make much meaningful sense to you.

Senator BOLKUS
—Unfortunately, Mr Webb, the previous answer made sense. I am trying to see if we can make sense of a request to give us similar information in respect to the last three years.

Mr Webb
—As I said, we can certainly provide the information. The information will be per application received, which will mean you will get many thousands of records with turnaround times. What I expect may be more useful to you is if we can compile it into some sort of meaningful format rather than have you reading through thousands of records.

Senator BOLKUS
—If you could do that we can pursue it after that. The other question that arises out of this is a concern that, particularly at the moment, there are printed materials that have a long backlog in turnaround time for classification. Is that your experience?

Mr Webb
—I might get you to repeat that, Senator.

Senator BOLKUS
—We have been told that printed materials are currently experiencing turnaround time lags.

Mr Webb
—As I said, only some print material. Some print material we process very quickly indeed in accordance with business requirements. Where I suspect you have a problem at the moment is with imported material. I can explain why that happens. For example, an importer may have a container load of titles and, rather than being able to give us copies in advance to classify, we get copies that come straight out of the container. There is a business pressure there to classify that material, but you might have many hundreds of titles. That causes a backlog. As of 19 May, we had 84 publications in that category that had been awaiting classification for more than four weeks.

Senator COONEY
—I have asked this question before, Mr Webb, and I have forgotten what you said, but you answered it most satisfactorily. What are we still giving classifications to? Are the sporting events still in there?

Senator COONEY
—I know we have been into this before. There is an enormous amount of work that you must get through if you are going to classify all this material.

Mr Webb
—The life of a board member of the Classification Board is a very busy one.

Senator COONEY
—You might even have to watch your own team being defeated or something like that.

Mr Webb
—I would say on some occasions that happens.

CHAIR
—The ultimate insult, Senator Cooney—in the snow, or against 14 men in my case!

Senator COONEY
—If you take the presumption which you do that most material is going to be all right and people are entitled to watch what they will, I think contributions to OFLC's output, the operation of the National Classification Scheme and provision of services ancillary to the scheme reflects government's view that adults should be able to make informed decisions about material which they or those in their care may read, view or play, and that everyone is protected from exposed or unsolicited material that they find offensive. Is there no sort of mechanism by which we can pull that down to what is likely to be a problem, or must you go through all this? It is just a matter of the practicalities of trying to get through all this.

Mr Webb
—I understand what you mean, Senator. I think it is very difficult to do that. For some people, certain material is more problematic than others. By that I mean that some people are more concerned, for example, about the effect of violence in cartoons on children, so that places great emphasis on classifications at a lower order; whereas others have a greater concern about the effect of certain depictions on adult viewers, for example, and that places greater emphasis at the other end of the classification spectrum.

Senator COONEY
—It is almost like being duty solicitor at a magistrates court: you pick up the case as it comes and you have about 15 minutes to prepare. Is that the sort of effect that this has?

Mr Webb
—I would say there is a due process that is applied; it is not really pick up the ball in a surprised sort of away and then try and run with it. We do understand the products that are submitted to us. I believe that we employ quite expert staff to assist the board identify material that is likely to be more difficult to classify than other material. Certainly, some material we can process very quickly. For example, if we have submitted to us, as happens on occasion, a series of editions of Bananas in Pyjamas, we do not expect that to be particularly difficult to classify; whereas, in the same sort of area of material, if we see episodes of Dr Who, we know that Dr Who contains themes that certainly are not suitable for very young children and so that would require a proper viewing, if you see what I mean.

Senator COONEY
—You do not get the danger, which is present, I suppose, no matter what you do, where people get jaded at the end of the day and may either give a classification that lets something through or keeps something out?

Mr Webb
—Certainly not, Senator.

Senator COONEY
—I should not have asked the question; I withdraw it immediately. The only other matter I have to raise comes under the heading `Competitive tendering and contracting' on page 122 where it says:

Contracts for work contributing to the outcome, for example in the commission of research, are let in accordance with competitive tendering processes.

I thought in an area as delicate as this I ought to ask: what sort of contracts are let out? Is the sacred duty of censoring compromised by this, by outside forces through the contracting out?

Mr Clark
—No, it is not, because usually this will relate to research and to the KPMG consultancy, which is a structural one.

Senator COONEY
—It was the word `research' that had me a bit concerned. What is involved in that? I took that to be research into films and books and all of that and the stuff that is to be subject to classification. Is that right?

Mr Webb
—The sort of research that the board conducts in part relates to what Senator Bolkus was asking about before, the operation of community assessment panels whereby, on behalf of censorship ministers, the board gauges community reactions to certain material. Other research that has been conducted in recent times involved a study called `Computer games and Australians today', commissioned on behalf of censorship ministers and conducted over a 3[half ] year period, which was publicly released late last year. That study investigated community concerns about various content, but particularly aggressive content in computer games. And over the years the board has conducted research of an attitudinal nature into films and also into publications standards.

Senator COONEY
—I would have thought that that research, whoever carried it out, would have to make value judgments. Wouldn't he or she?

Mr Webb
—That depends very much on the type of research. Generally speaking, the board has not commissioned research that requires a researcher to make value judgments of that order. The sort of research that has been commissioned has either been focus group research, where the views of participants are recorded, or surveys of a statistically viable nature on a national basis, as was conducted in the computer games research, to test some of those views out of focus groups.

Senator COONEY
—There is no research where value judgments come in, or very little?

Mr Webb
—Research is one of those things where I certainly would not want to say that there are no value judgments involved. But the sorts of research that serve the board best, as well as the censorship ministers and others interested in these areas of media content policy, are those that certainly attempt to be impartial in their presentation.

Senator HARRADINE
—Is there any research into the harmful effects of some of the violent or pornographic material on viewers?

Mr Clark
—We have not done any, but there was some research from the United States on animations released this week which we are very interested to see. I have had a brief look at that; I do not think it informs us any more than we have been informed in the past. But it is interesting to see that research coming up. We have not conducted any ourselves.

Similarly it is not possible to establish with certainty that there is a causal link between viewing such material—

that is, the type of material in X—

and the commission of crime.

Did you have any hand in preparing that? What was the use of `commission of crime' there? Is that the test? Frankly, I do not know anybody who suggests that the viewing of a particular video is the sole cause of the commission of a crime. Where did that come from?

Mr Clark
—I am not entirely sure which submission you are talking about.

Mr Webb
—I would have to refer back. I cannot recall whether we were involved in making a contribution to those papers or not. I cannot recall the particular paper. In general terms, I have heard those terms used before and certainly there have been discussions, in which we have been involved and have had an interest, to ascertain whether or not there is some sort of causal link between viewing certain material and certain types of behaviour in society. Commonly those are referred to as criminal behaviours and, particularly, there has been a body of research, as I am sure you are aware, and people who have given evidence to various inquiries over time have made reference to the possibility of a link between viewing what may be termed pornographic material and sexually violent behaviour.

Mr Webb
—Those are the sorts of bodies that we are aware of. I do not know if that is particularly what is referred to in the paper that you have just made reference to.

Senator HARRADINE
—You did indicate, on the other hand, the effect on users. You said:

Research undertaken by some social and behavioural scientists shows that pornography, under certain conditions can stimulate aggression in, and exercise an influence over, the attitudes of pornography users.

All I was trying to find out was whether OFLC prepared that paper, or whether it was prepared within A-G's. If it was prepared within A-G's, I had better be asking them.

Senator HARRADINE
—Yes, it was 1998. The reason I ask is that somebody has provided neatly to members of the coalition a letter which has that but, of course, does not have the alternative view that has been put forward by others and noted by the OFLC, if that was the basis of that. I imagine that you have got the report of the Aboriginal and Torres Strait Islander Women's Task Force on Violence?

Mr Webb
—I have seen it but I do not have it with me.

Senator HARRADINE
—That did emphasise the problems that are caused in some communities by the introduction into them of X material. Is that something that the OFLC should be looking at, or is it something that somebody else, like the Attorney-General's Department, should be looking at?

Mr Webb
—I will try to respond to that, Senator. I think the incidences of X videos being introduced to Aboriginal communities is, of course, of concern to the board. But I think those incidences, certainly in my recollection of that report, related to areas where such videos are illegal in any event. That is a matter for the state and territory police in terms of their local distribution. That is not to say that the mail order and ownership are not illegal—that is a different question.

Senator HARRADINE
—No, we are talking about legally available material and the incidence. The statement by the committee was:

The incidence of sexual violence is rising and is [in] a direct relationship to negative and deformed male socialisation associated with alcohol and other drug misuse, and the prevalence of pornographic videos in some Communities.

Mr Webb
—As far as the board is concerned, I think that is largely consistent, although it may be accentuated with other research into the area. I am sure you are aware of the Australian Institute of Criminology reviews related to this causal research, which seems to indicate, as far as we can tell anyway, that some people who may have some predisposition may be adversely affected and that may result in some sort of change in behaviour. But a combination of factors—such as alcohol, drugs, as well as the sort of material that you are referring to—may adversely affect some people in that way. So the board is concerned about that, and we are interested to note the research.

Senator HARRADINE
—You would have noted the evidence that was provided to us by certain counselling organisations about the effect of the material on young viewers.

Mr Webb
—Certainly we noted the submissions and the evidence that was given in that regard.

The Government is committed to the principle that adults should be able to read, hear and see what they want, whilst minors should be protected from material likely to harm or disturb them, and everyone should be protected from exposure to unsolicited material that they find offensive.

Strictly that is not correct, is it?

Mr Webb
—That is a statement of general principle. It sits in relation to other general principles within the national code. It has been repeated in portfolio budget statements, and it is worth looking at all of those statements together, because not only do you have that statement that you just read out but you have other parts that Senator Cooney read out earlier, which deal with the need to protect children from that material.

Senator HARRADINE
—I will read both statements, because it does not make sense in my view. It states:

The Government is committed to the principle that adults should be able to read, hear and see what they want, whilst minors should be protected from material likely to harm or disturb them, and everyone should be protected from exposure to unsolicited material that they find offensive.

What if the last two were met? The first one still is not correct, is it? Because adults are not free to view sadomasochism, child pornography or bestiality—just to mention three.

Mr Webb
—I think the issue here is that the principles sit in relation to each other as a broad underlying framework. It is not, as far as I understand it anyway, the intent of those general principles to say that the Australian community generally should forego its right to limit what is generally acceptable. In other words, there are boundaries that I think most people accept, apart from maybe a few on the fringes, as to what is generally acceptable. I think child pornography is a good example of what generally people find abhorrent and not acceptable. So, in that sense, adults do not have the right to see child pornography if they choose, and what you are saying is correct. But I think that as a general statement of principle, which is what those statements are, the governments that agreed to those statements are saying that they respect the right of free speech, they respect the right of adults to choose their viewing and their entertainment material, but within limits. What it does not say and possibly should say—which I guess is self-evident in any censorship scheme—is that there are limits.

Senator HARRADINE
—On the question of censorship, isn't the fundamental principle the question of freedom of expression?

Mr Webb
—The two sit against each other.

Senator HARRADINE
—If the material is not published, adults cannot view it anyhow. So there has to be a step before all of this, and the step before all of this surely is the question of—I mean, we are dealing with a question of principle—the issue of free speech. Pornographers claim the right of freedom of expression as against the other principles and the principle of common good. Eventually, I really would like somebody to take this on board in the OFLC or in the areas of discussion about this to see whether that is the issue we are talking about. Once having established that, then you make judgments as to whether certain people's claim to freedom of expression is a violation of the rights of other people. For example, Professor George Zdenkowski once said that pornography operates in a similar fashion to racism.

Mr Webb
—We would probably agree that there are various views about this. The role of the OFLC, as we have said on many occasions before, is to apply it in law. The law is what we are talking around in terms of general principles, and I think the law protects the right of a community to protect itself as much as it upholds the right of adults to make free choice, given other caveats on that. So to go further than that is not really the role of the OFLC; that surely is a matter for government.

Senator HARRADINE
—Could we go to what your outlays are—the budget for next year? There is a rather small increase there. Could you explain for us output 1.1? The operation of the National Classification Scheme has got $237,000 as against $137,000 here.

Mr Tenison
—Within output 1.1, there is a $100,000 increase in the revenue from other sources. This relates mainly to additional items of revenue raised from the ABA and some other new business activities.

Mr Tenison
—That is not on that table, no. The revenue from fees is an administered item which goes directly to the government.

Senator HARRADINE
—Does the budget estimate for next year anticipate the passage of the legislation currently before the parliament with the reduction in fees that that entails?

Mr Tenison
—No, they are not. These figures here are based on legislation which was in place at the time the figures were struck, which was later—probably in May.

Senator HARRADINE
—Mr Webb, you mentioned the X industry placing a boycott on the OFLC.

Mr Webb
—That is my belief, yes.

Senator HARRADINE
—How was that applied? What was the nature of the boycott and when?

Mr Webb
—That is a very straightforward matter. Our understanding was that following the increase in fees by government regulation at the end of 1995 coming into 1996, the level of applications for the X classification declined very dramatically for a period of about six months. Various noises were made in the industry about a boycott and people were not going to pay fees and so forth. Ultimately that matter was, I think, brought to a head, possibly by a prosecution in the ACT which resulted in a very large number of applications coming forward to the OFLC. You can see that in the reported annual figures for the annual reports covering that period.

Senator HARRADINE
—Have you heard statements by the Eros Foundation which are a direct blackmail threat to members of parliament with an intention to unduly and improperly influence members of parliament in the exercise of their role?

Mr Clark
—Yes, Senator, we have seen those reports in the media and on Four Corners.

Senator HARRADINE
—What sort of relationship on the ground do you have with members of the Eros Foundation?

Mr Clark
—We do not have a particularly close relationship. Since my appointment, there has been one meeting where the chairman came with a person who was wanting to pursue an appeal against a classification. That is the only contact I think that we have had with them in the last five weeks, and it is usually on a fairly formal appointment basis that we have meetings with them.

Senator HARRADINE
—When classifying material into the X category, is the material viewed by an officer of the department or are they taken in lots, for example?

Mr Clark
—The material is viewed by classifiers for assessment into that category. If there is difficulty with coming to an agreement about an assessment, there is a further screening of that material.

Senator HARRADINE
—Could I go to the question of the NVE category and I will just follow this through a little, if I may? Is it a fact that the NVE category will contain and feature group activity, three males and three females, for example, with fellatio, cunnilingus and intercourse involving double penetration, simultaneous anal and vaginal intercourse?

Mr Webb
—I would not like to say feature; I would say not excluded. I would say that there are varieties of sexual activity and sexual behaviour which may be portrayed on film within the NVE classification as proposed, as far as we understand it, which would include some of the activities, if not all the activities, that you have just read out. I would not say feature. I would say those, as far as we understand, are not to be excluded.

Senator HARRADINE
—I refer to the video clips which you showed us; I do not think it is necessary to mention the name of it. Why cannot the OFLC bring that example to the Parliament House and show members of parliament?

Mr Clark
—I would be reluctant to do it in that context. I think that we must comply with the laws as should anyone else and I think that to bring material to parliament out of context would not be appropriate. We are very happy to, as has been arranged previously, arrange screenings of material in the context of advice on the classification system. That would continue to be our preference.

Senator HARRADINE
—But any members of parliament wanting to authoritatively see what is going to be served up under the proposed NVE classification will have to turn to other sources for the supply. Wouldn't it be better all round if the OFLC were to, yes, bring that clip and the whole of the—I mean, you showed it to some of us who took advantage of the offer that you made. You showed it to us in the OFLC boardroom. What is the difference between showing it there and showing it here in Parliament House? As far as I know—and the chair can correct me if I am wrong, but I have checked it out—there is no problem legally—

Mr Clark
—No. My reluctance would be any material being out of context. Within the context of inquiry or other appropriate situations, fine, but it would be a presentation by us of material, not just making material available. I may have misunderstood you.

Senator HARRADINE
—So you would accept an invitation by members of parliament wishing to be informed about the material to come to Parliament House and show what you showed us?

Mr Webb
—Can I say that what was shown in Sydney in the OFLC boardroom was shown at the request of the Senate Legal and Constitutional Legislation Committee in the context of an inquiry into a bill before the parliament in relation to a reference. In relation to the more general matter that you are raising of the NVE category—its naming, its content—in the sense of, should there or should there not be, a change of law in that area, if the government wanted the OFLC to demonstrate material, then we would consider that. Other than that, I would say that it is open to members of parliament to seek viewing of material or access to material at the OFLC, and for the director to consider those requests, as happened with the committee recently. I do not know if it would be appropriate for the OFLC, either of its own volition or in response to requests not from the government, to intervene by way of showing material. I do not think that is our role.

Senator HARRADINE
—I am asking you quite deliberately either to make available or provide to members of parliament who want to see it, the same material that we saw in your boardroom, and that is material that is representative of what is to be contained in NVE. In discussions with my colleagues, many of them have not got a clue what is going to be in the NVE. They would want to be able to see what we saw. You do not have to come down here yourselves; it is a matter of sending the clips down.

Mr Webb
—Senator, I think it would be—

Senator HARRADINE
—Indeed, sending the whole of that particular video down would be better.

Mr Webb
—Can I say, Senator, though, I think it would be inappropriate for a government agency, a statutory agency, in whatever way, to distribute material such as you are talking about. As Mr Clark has made clear—

Senator HARRADINE
—To members of parliament wanting to have the information upon which they will base their decision in the parliament of Australia.

Senator Vanstone
—Madam Chairman, perhaps this might be appropriate: I understand what Senator Harradine is trying to achieve, and it might be a matter I could take up with the Attorney and come back to Senator Harradine on. I can see the position of the officers, and I can see Senator Harradine's position. I might just have to be the bunny in the middle, to go and see what we can sort out that will be to the satisfaction of both parties—which would be my aim, Senator Harradine.

CHAIR
—I think that is a constructive suggestion, Minister. Senator Harradine, does that assist you in your concerns?

Senator HARRADINE
—Thank you, Senator Vanstone. Is it your belief that the parliamentarians have the right to see this matter?

Senator Vanstone
—Senator, I can see both sides of this. I am very conscious of the need for parliamentary committees to be able to fully inform themselves, and it is on that basis that I will speak to the Attorney.

Senator HARRADINE
—What if we get into the committee of the whole of the Senate and an amendment is moved, requesting the OFLC to provide the clip that we saw, and indeed provide the whole of the video, so that the committee of the whole of the Senate could see it? What would be your response then?

Senator Vanstone
—I have no doubt the officers would have to consider that, if there were a request from the Senate as a whole. I am sure they are cognisant of the fact that committees are the Senate sitting as a subcommittee. I can understand the concern they have got, but I can see your concern. What I am offering to try and do is to find a solution that is satisfactory to all parties.

Senator HARRADINE
—Thanks. What role does the OFLC play at SCAG or censorship ministers meetings?

Mr Webb
—The role that the OFLC plays is twofold. First, we have a role as an expert to respond to questions and provide information. That is from the classification side of things. The other role is in relation to administrative functions—performing the role of a secretariat, if you like—for the organisation of officers meetings and, to a very much lesser extent, the ministers meetings, in accordance with the protocols that apply. Interpreting where you might want to go: that means we have a role in the preparation of papers and the preparation of minutes.

Senator HARRADINE
—But the briefing that is given to the minister is given by A-G's, is it?

Mr Webb
—As I say, we have an expert role to play. So we are part of those processes and we are often in attendance, at the Commonwealth level anyway, in the briefing of the Attorney-General in relation to his preparation for those matters, in case he has any questions of any expert or precise nature relating to classification or the standards that apply. And, in terms of the ministers meetings themselves, yes, we are in attendance there as well.

Senator HARRADINE
—But what sort of direct advice has the OFLC given to the state and territory ministers?

Mr Webb
—That depends very much on what questions are asked. I am not trying to be obscure in this, Senator. It does depend on what is on the agenda and what questions arise from those matters on the agenda, as to what sort of input or advice we might provide. So, in relation to X and NVE, there is not a great deal of input that we can have. We apply the law and really, from the policy side of it, there is not much that we have to say on that subject.

Senator HARRADINE
—On applying the law: the NVE category will have material that is now in X, save only certain fetishes, sexually aggressive language and the portrayal of persons 18 years of age and over as juniors or minors.

Mr Webb
—And any violence whatsoever. There are a number of things that get excluded—between 20 and 26 per cent, in our estimation.

Senator HARRADINE
—Let us make that very clear. There is already no physical sexual violence in the X category and there hasn't been for ages.

Mr Webb
—That is correct. What I said was any violence whatsoever.

Senator HARRADINE
—Yes, I understand what you are saying. What I am getting at is: if we take the area of persons over 18 years of age appearing as under-8—as children, how many videos are we talking about? What type are we talking about?

Mr Webb
—In the survey the OFLC did of 641 films classified X in the January to June period of 1998, there were six films, 0.9 per cent, containing portrayals of adults as minors.

Senator HARRADINE
—Are you saying that the portrayal of actors as being minors in a sexual context is not demeaning?

Mr Webb
—That is not what I said. I said there were six films that had been classified X by the board because those depictions were not demeaning. That does not mean to say that there were not other films that were classified RC because the board thought that those depictions of adults as minors were demeaning. In other words, in the board's view there are some depictions of adults dressed as minors which are demeaning and there are some which are not.

I will give you an example to assist. An example of a depiction that the board may consider as demeaning might be where you have a youthful looking person dressed maybe in a school uniform—something like that—where clearly the person is adult but dressed in a uniform, maybe with pigtails, sucking a lollypop, among other things. That is a bit of a signature for a schoolgirl sort of fantasy, and the board would consider that to be demeaning. The type of depiction that the board may not consider to be demeaning is where you have a person who is clearly adult, maybe in their thirties or forties or fifties, who may, as part of their sexual behaviour, want to walk around in a nappy and do sexually explicit things alone or with others. That particular depiction, where the adult is dressed in a nappy, I believe, is actually what these sorts of films—at least one of them anyway—contained. The board did not consider that it should ban a depiction of an adult dressed in a nappy on the basis that that was demeaning—which, in the board's view, it wasn't.

Senator HARRADINE
—You know that the Attorney-General made the statement when announcing the NVE that the new category NVE was required in order to remove demeaning material in the X category.

Mr Webb
—Yes, I am aware of the press release.

Senator HARRADINE
—Are you saying you disagree with the Attorney-General? If that was the case, under the national classification code why are you required to place in the RC category, refused category, material that is demeaning? Here is the minister saying, `We have to have another NVE category to remove demeaning material.'

Mr Webb
—Without wanting to make too much comment about the content of the press release or what was in the Attorney's mind at the time, what I can say is that material that is considered demeaning by the board is already excluded. What appears to be going on is that the government and the censorship ministers may consider certain other material to be demeaning, in their view, and in that regard want to proscribe it, in a sense, as part of this proposal but want to proscribe it by changing the guidelines and the standards so that then the board is required to exclude that material into the RC category as well.

Senator HARRADINE
—But your obligation under the legislation is to refuse classification of demeaning material. Clearly, either you have fallen down on your job or you do not agree with the Attorney-General in his understanding of what is or what is not demeaning.

Mr Webb
—I think that is probably putting it in a very black and white fashion. I think the board has upheld its role and its work in banning material that it is required to ban—demeaning material, in its view. The board is to reflect the general community standards and to apply what we call the community standards test as well as the reasonable adult test in looking at material. `Demeaning' is a broad term that has different meanings to different people. It changes over time. Albeit there is a definition in the glossary of terms in the classification guidelines of films and videotapes, there is no precise definition as to exactly what is meant in terms of the precise content to be excluded. I think the difference—if there is a difference at all here—has arisen out of what the board is continuing to do under the current guidelines and the feeling of the ministers, including, it would appear, the Attorney-General, without necessarily disagreement with the board, that certain depictions are generally so offensive and demeaning that they should also be excluded. That is the list as far as we understand it.

Senator HARRADINE
—Have you then excluded any that have come before you or recalled any of those?

Mr Webb
—Any what, Senator?

Senator HARRADINE
—Any of the ones that we are dealing with—the ones of the depiction of actors appearing as minors?

Mr Webb
—I think it is a matter of degree. If you look at the list, as you mentioned, fetishes are to be excluded under the new proposal. The board regularly excludes films containing stronger fetishes. It does not currently exclude films containing milder fetishes. If the law is changed, then it will exclude those films containing milder fetishes. I think it is a matter of degree. The board does exclude certain content containing sexually aggressive language that it considers to be demeaning, just as we have adults portrayed as minors and so on.

Senator HARRADINE
—But all of these, the Attorney-General said, are demeaning. So why aren't you doing your job? What state censorship minister does not believe that this material is demeaning?

Mr Webb
—Senator, you would have to ask the state ministers. I have no idea. I am not trying to be obtuse. I believe there is an agreement to a proposal that all the state and territory ministers have agreed to, which is for the exclusion of this material and the renaming of a classification.

Senator HARRADINE
—Which the Attorney-General said is required in order to exclude demeaning material, which you already should be excluding.

Mr Webb
—As I have explained, I think the board, in its view, is excluding demeaning material.

Mr Webb
—I presume that the ministers had all agreed to a proposal as a package, and I presume that what is delaying it, if anything at all, is a determination by the government as to whether or not the proposal is going to proceed in the form in which it was agreed.

Senator HARRADINE
—But even if it was not agreed, which state and territory minister would say that the material that they believe should be refused classification is able to be classified?

Mr Webb
—Senator, I have not been party to those discussions if they have been taking place. All I can say is that you would either have to go to the individual ministers concerned and ask their view, or seek a view from the Attorney.

Senator HARRADINE
—On a previous occasion you told this committee that a proportion of the total number of X videos sold—about 20 to 26 per cent of the 641 X-rated videos sampled by the OFLC that would fall into that category.

Senator HARRADINE
—And they will be able to be sorted out by simply saying, `I've seen one of those and there was a second and a half of sexually assaultative language.' So you just get that and zip that out and it is still on the shelf.

Mr Webb
—This goes to the matter that we were talking about before to do with demeaning material.

Mr Webb
—I will read through the list. We have sexually aggressive language, 10 films; violence outside a sexual context, 27 films; fetishes, 87 films; adults portrayed as minors, six films; and numerous sexual partners, five films. That is a total of 130 films, if my maths are right.

Mr Webb
—I have no idea how many copies of a particular film that is classified are duplicated or how many copies are sold or returned.

Senator HARRADINE
—Would you not admit that with respect to your statement of 20 to 26 per cent—which has been taken up with gusto by the Eros Foundation, by the way, because they know better—the bulk of what you are talking about is fetishes.

Mr Webb
—As I have said, Senator, 87 films out of 130 to be excluded would be fetish material.

Mr Webb
—I think, in terms of the point that you just made about the Eros Foundation knowing better, all I can say is that we have surveyed 641 files and in the report that I provided to the committee in its inquiry into the NVE issue, each of the 130 titles which we thought would be excluded are listed with the reason why they would fall, in our view, outside the terms of NVE. So there is quite a lot of detail there if committee members are interested.

Senator HARRADINE
—I understand that. That is not the question I asked. The question—

Mr Webb
—No, I just thought the Eros Foundation might have a different view.

Senator HARRADINE
—No, the Eros Foundation has grabbed what you have said because it is what they obviously wanted to be said because they want to have a marketable title, an NVE title. Do you not realise that that is what they have been on about for years?

Mr Webb
—Senator, I really cannot comment about what the Eros Foundation might want or not want. As Mr Clark has indicated, we have formal dealings with them from time to time on particular issues and I think that on this issue it may be that more attention is being applied by the Eros Foundation to members of the government than to people who justify the law. I have seen reports about things said by the Eros Foundation. We are certainly not naive at the OFLC, but I do think that any imputation at all—I am not suggesting you are doing this—that these figures have been produced for a reason is absolutely not right at all. These are an accurate reflection of what is in the files.

Senator HARRADINE
—No. Madam Chair, that is not what I am doing or anything suggesting that.

Mr Webb
—No, I did not suggest that you were for a minute.

Senator HARRADINE
—What I am asking you directly is: what percentage of the total sales do those videos represent?

Mr Webb
—I repeat, Senator, I cannot answer the question. I have no sales figures on which to base an answer.

Senator HARRADINE
—But don't you realise that when you give out these figures, as you have, it creates a false impression that 20 per cent of X-rated videos that are being sold will be banned?

Mr Webb
—Senator, these figures—

Senator HARRADINE
—In fact, no, I am quite serious about that. Could we just go to the question of fetishes? Is that not normally a very selected area?

Mr Webb
—Quite honestly, Senator, if you are asking me about the consumers who may purchase those videos and the volume in which they do that, I have no idea. All I can tell you, which is what we have put in this report, is what the records of the board and the OFLC indicate in terms of the proportionality of the content that that type of material represents. And just for the record, this report was produced in response to a question on notice taken from you some years ago when you asked for this to be done. It was not done for the Eros Foundation.

Senator HARRADINE
—I did not suggest it was done for the Eros Foundation. What I was asking you was what proportion—and you cannot give me the answer—

Mr Webb
—No, I cannot.

Senator HARRADINE
—That is the key question: what proportion do these bear to the total sales? You do not know.

Mr Webb
—I cannot answer the question. Quite honestly, I have no idea how many copies of, for example, a film containing a depiction of a fetish would be duplicated, than copies of any other type of film.

Mr Clark
—Senator, that information is really available only from those who are selling the material. It is just something that we do not have, and they would not give it to us anyway.

Senator HARRADINE
—What sort of material are you taking from the R category to put into NVE?

Senator HARRADINE
—Isn't the essential part of NVE category the fact that it is explicit? In other words, the viewer can view the material that, in your words, over the years had been explicit. What did you mean by `over the years' with explicit material? What did the board mean?

Mr Webb
—The NVE category, as far as we understand it, is a special category to replace the existing X category, narrowing the type of content permitted but still permitting sexually explicit content. `Sexually explicit' is where actual depictions of sexual activity are shown in detail on screen. The R classification that you are asking about does not permit that—the general rule in the guidelines is: simulation, yes; the real thing, no. And so, in that way, sexually explicit material where real sexual activities in detail are shown is not permitted in R.

Mr Webb
—The X category, as it stands at the moment, is a special category for sexually explicit material. As I said previously, my understanding of the proposal is the NVE category will replace X, but only once the content is narrowed.

Senator HARRADINE
—But the key issue is whether or not it is explicit, so why don't you use the X category? Why don't you keep the X category?

Mr Webb
—That is a matter for government and for the minister. As I said previously, we apply the law.

Senator HARRADINE
—I know, but I am trying to work out the logic of the law that you are applying and see what you think of the logic of the law. What if you have two films: one is explicit, as you describe, and the other is taken from a different angle—same actors, same theme, same content, same intent.

Mr Webb
—Quite different outcome.

Senator HARRADINE
—So you put one in the NVE category and you put the other in the R category?

Senator Vanstone
—The point being made is that what is in each frame that goes to screen is different and so what people see is different. Senator, I have not seen these movies. I am actually not inclined to take up the offers that have been made to look at this sort of material; I am just not interested. But it is patently obvious that if someone has seen a film of any activity taken from one direction and then they are shown another film of the same activity taken from another direction which shows perhaps less of what was going on, their mind will actually go back to the film that they have seen in the first place. Once someone has seen both, they cannot separate them out. You just cannot wipe your mind clear of what you have already seen.

CHAIR
—Notwithstanding how often one might like to, Minister.

Senator Vanstone
—Yes. It would be handy to have a capacity to wipe out of one's brain things one might have preferred not to have seen or have heard, but you cannot.

Senator HARRADINE
—Minister, I am going to the logic of it all. It is just illogical to—

Senator Vanstone
—The point that has been made, Senator, is that there are films that might have been manufactured out of the same activity taking place, but that what is offered to the purchaser or the hirer or whatever of the films is a different view.

Senator HARRADINE
—We are talking about the question of the title. If that is the key differential, why don't you call it X?

Mr Webb
—I do not know if I can explain this further, but in classification it may be an aspect of technical consideration. The difference of a couple of seconds or a couple of frames in a film can make the difference, and often does, between classifications. It is not just between X and R.

Mr Webb
—This is commonly a consideration. Commercial distributors cut films in particular ways to achieve a particular market. I make no bones about it. The board must classify what is put in front of it in accordance with the guidelines that have been determined and which we are required to apply. That is what we do.

Senator HARRADINE
—Has the board noted what Professor Sheila Jeffreys of the Coalition Against Trafficking in Women told the committee of inquiry?

Senator HARRADINE
—You would have given your material to the A-G's Department, would you?

Mr Webb
—Which material?

Senator HARRADINE
—The material prepared for SCAG or the censorship ministers? I will be seeking to have the department table their briefs and submissions.

Mr Webb
—Certainly, in answer to your question, anything that we had prepared would be caught within that, yes.

Senator HARRADINE
—I will be asking for that material to be tabled. There is no point in asking you if—

Mr Webb
—If you ask us, I would suggest that you get only a very small proportion of what you might be looking for.

Senator HARRADINE
—Going to the question of the implementation, which gets to the nitty-gritty of it, do you expect much expenditure to be involved in the implementation of the new scheme?

Mr Webb
—Not so much expenditure, no. We expect there will be work for us to do in terms of classifying films for NVE—which we currently do, albeit with a broader range of content at the X level, and we do not expect that that will change—and there may be some call for reclassification of material previously classified X, either into the NVE category or the RC category as the case may be.

Senator HARRADINE
—How would that occur? Does it mean that as from a particular time all X will be banned?

Mr Webb
—It depends on what you mean by that. In one sense, yes, it does because the board will not be in a position to issue an X classification once these measures come into effect. What it does not mean is that any films previously classified X since 1984 will be automatically banned.

Senator HARRADINE
—By that, what do you mean? If a certain complainant complains and refers it to you?

Mr Webb
—Yes, I think that is correct—if there are complaints or if there is a request for a reclassification from the Attorney-General or from one of the state or territory ministers or an application received from a distributor. There are various mechanisms set out in the bill.

Senator HARRADINE
—Sure, I understand that. In other words, you are still going to have the X category and there are still going to be 12,000 titles around—not titles; are they titles?

Mr Webb
—It is impossible to estimate, and there are various figures that I am aware of by way of estimates as to how many actual copies of these titles there are in the market. You would probably be aware that a previous chief censor suggested that the figure might be conservatively two million. I do not know what it is, but those videos will still remain.

CHAIR
—Senator Greig, I understand you have some questions in this area.

Senator GREIG
—I apologise to colleagues if I might be going over some previous ground here. I was not able to be here a little earlier.

CHAIR
—We have covered a great deal of ground, so anything is possible.

Senator GREIG
—It is a long, ongoing debate. I would like to pick up on the issue of screening of X-rated and unclassified materials within the parliament. Mr Webb, can you clarify for us please, what the situation is there? Are parliamentarians above the law when it comes to that?

Mr Webb
—I do not think I can give you a precise legal answer to that without getting legal advice. I note your previous question on notice to the Attorney in relation to these matters. As to whether the ACT Classification (Publications, Film and Computer Game) Enforcement Act of 1995 applies or whether an exemption is in place or the extent of the exemption, I would need to seek legal opinion about it.

Senator GREIG
—My understanding of the classifications act of 1995 is that it works on a unanimous agreement or cooperation between states, territories and the Commonwealth, and that there was a unanimous decision of the standing committee on censorship matters inquiry into non-violent erotica to support that government bill presented by the Attorney.

Mr Webb
—That is correct.

Senator GREIG
—And yet it was the Prime Minister himself who withdrew that bill. How is it that the Prime Minister can do that without consent from the states and territories?

Mr Webb
—That is a matter you would have to take up with the Prime Minister. In terms of the operation of a cooperative national scheme, it is for the Commonwealth government to do what the Commonwealth government thinks best in terms of managing its relationships within that scheme. But as to the particular whys or wherefores of that decision, I cannot answer you.

Senator GREIG
—Thank you. My last question is probably best directed to the minister. Minister, can I ask you if you can confirm that the ACT registrar of X-rated videos, Mr Tony Brown, has referred to the Federal Police the issue of Mrs De-Anne Kelly and the displaying of X-rated videos? My experience from feedback from the electorate is that there is a lot of cynicism towards politicians in terms of preferential treatment. Are you able to give us some kind of guarantee that the Federal Police will deal with this issue without fear or favour?

Senator Vanstone
—I cannot even confirm for you that such a referral has been made. If it has come through my office, it does not come to mind, I would have to say. More often than not with referrals, they are not made public in any event. Sometimes they have been made public because people announce that is what they have done, but the Federal Police certainly do not see it as their role to make those things public. I do not have any immediate memory of a referral being made through my office, for example, which is often the course of action that federal members would take. I do not suppose a state member would. A state member could go or the person to whom you refer could go straight to the Federal Police. I do not make it a practice. It is quite inappropriate for me to ask about matters that they are investigating. Rather, it works the opposite way—that the Federal Police, if they think a minister needs to know of something because of some potential impact, send a brief up letting me know that is what is happening.

CHAIR
—Thank you Mr Clark, Mr Webb and Mr Tenison for your appearance before the committee this afternoon. We are, as ever, grateful for your assistance with the committee's deliberations and particularly in our estimates deliberations.